New Laws

Governor Jerry Brown signed SB 820 by State Senator Connie Leyva on September 30th as Chapter 953. The bill prohibits a provision within a settlement agreement that prevents the disclosure of factual information related to specified claims or complaints in either a civil action or administrative action.

The bill went into effect January 1, 2019 and it specifically allows plaintiffs in these types of actions to retain the right to request provisions in settlement agreements that shield their identity. Note that the Assembly amendments expanded the claims that are covered by the bill, extended the scope to cover court orders, and also narrowed an exception that’s available at the request of the claimant.

SB 820 makes a provision in the settlement agreement that prevents the disclosure of factual information related to the claim for those agreements entered into on or after 1/1/19 to be void as a matter of law and against public policy. The new law provides that a court may consider the pleadings and other papers in the record or any other findings of the court in determining the factual foundation of the causes of action specified in these provisions.

This new law applies if the claim relates to an act of sexual assault, sexual harassment, workplace harassment, or discrimination based on sex, or retaliation for reporting harassment or discrimination based on sex. It does not prohibit the entry or enforcement of any agreement that includes the disclosure of the amount that was paid in settlement of the claim.

The bill also creates an exception where it is not applicable if a party is a government agency or public official. For a provision that shields the identity of the claimant and all facts that could lead to the discovery of his or her identity if that provision within the settlement agreement that is made at the request of the claimant.

Governor Jerry Brown signed Senate Bill 838 by State Senator Robert Hertzberg on September 28th as Chapter 889 and this bill authorizes corporations to include a provision in their articles of incorporation authorizing the use of blockchain technology to record and track the issuance and transfer of stock certificates.

The bill was, before reaching the Governor’s desk, revised to modify the definition of blockchain technology and the bill added a January 1, 2022 sunset date. So this bill, which takes effect on January 1, 2019, will be in effect for three years.

The author is the sponsor of the bill and his stated intent is to provide privately held corporations with a more secure means to protect their shareholders from fraud involving the issuance and transfer of stock certificates. According to his statement, “SB 838 is intended to authorize privately held corporations to issue and transfer share certificates through blockchain technology or distributed electronic networks. And by authorizing this technology to be used in this way, California is engaging in new technology that will protect consumers and corporations from cases of fraud and theft.”

California is the first state in the country to authorize the use of blockchain technology to record and track the issuance and transfer of stock certificates. Despite the theoretical value that blockchain technology holds for securely and accurately documenting stock transfers, no other state has approved this technology for this purpose so far. We’ll have to look forward to how it works over the next three years.

Governor Jerry Brown signed Assembly Bill 2770 by Assemblywoman Jacqui Irwin into law as Chapter 82 of the Statutes of 2018 on July 9, 2018. The bill’s provisions specifically amended Section 47 of California’s Civil Code and went in to effect on January 1st of this year.

AB 2770 created a limited privilege for employer communications of sexual harassment claims against former employees. AB 2770 amends Civil Code Section 47(c) in two explicit clauses. First it adds a sentence that the particular subdivision applies to and includes a complaint of sexual harassment by an employee without malice to an employer based upon credible evidence and communications between the employer and interested persons, also without malice, regarding a complaint of sexual harassment.

The second clause is that AB 2770 amends the existing law to state that this particular subdivision authorizes a current or former employer, or that employer’s agent, to answer without malice whether or not the employer would rehire a current or former employee and whether that decision to not rehire is based upon the employer’s determination that the former employee engaged in sexual harassment.

Now in explaining this bill to members of the Legislature the Senate Floor Analysis said, “This bill would allow former employers to inform potential employers about whether a decision to terminate or not rehire an individual is based upon the employer’s determination that the former employee engaged in sexual harassment. This bill does not provide an absolute privilege to these types of communications, but a conditional privilege whereby the statements made by the former employers cannot be made with malice.”

This bill was sponsored by the California Chamber of Commerce and in support, the Cal Chamber and some 35 supportive groups wrote that, “AB 2770 codifies case law to ensure victims of sexual harassment and employers are not sued for defamation by the alleged harasser when a complaint of sexual harassment is made and that California’s public policy protects employees from harassment and AB 2770 furthers this particular public interest.”

SB 1001, from the 2018 legislative session, made California the first state to enact a bot bill.

Governor Jerry Brown signed Senate Bill 1001 by State Senator Robert Hertzberg (D – SD 18) on September 28th as Chapter 892. The bill is effective on July 1, 2019 and it prohibits a person from using a bot to communicate or interact with another person in California online with the intent to mislead the other person about the bot’s artificial identity for the purpose of knowingly deceiving that person about the content of the communication in order to incentivize a purchase or sale of goods or services in a commercial transaction, or to influence a vote in an election.

The California Legislature made a number of changes to SB 1001 before it arrived on the Governor’s desk. Those include updating definitions and removing requirements for online platforms to take actions such as: enabling users to report bots violating the provisions of law, investigating and determining within 72 hours whether to act upon reports received by users, and – three – providing details of user reports and internal investigations to the Attorney General upon request.

SB 1001 adds an entire new chapter to California’s Business and Professions Code. It defines the terms “bot,” “online,” “online platform,” and “person.” Bot is defined as an automated online account where all, or substantially all, of the actions or posts of that account are not the result of a person. New B&P Code Section 17941 makes it unlawful for any person to use a bot. However, a person using a bot is not liable under this code section if the person discloses that it is in fact a bot. That disclosure must be clear, conspicuous, and reasonably designed to inform persons with whom the bot communicates or interacts that it is a bot.

Also, new Section 17942 provides that this law does not impose a duty on service providers of online platforms including but not limited to web hosting and internet service providers.

Governor Jerry Brown signed Assembly Bill 2664 by Assembly Member Chris Holden on September 18th as Chapter 497. The bill amends two Government Code sections. For example, it authorizes a pro tempore official reporter who is present in the courtroom providing that service to be appointed by the presiding judge of the court or the judge presiding in the department where the reporter will serve.

The bill also requires the Judicial Council to adopt rules to ensure that at the arranging party’s request, the court is required to appoint the certified shorthand reporter to be present in the courtroom and serve as the official reporter pro tem, unless there’s a good cause shown for the court to refuse that appointment. It also requires that the fees and charges of the certified shorthand reporter be recoverable as taxable costs by the prevailing party.

The purpose of new Assembly Bill 2664 is to end the requirement that all parties involved in litigation must agree and stipulate to the use of a specific court reporter pro tempore before the reporter can be appointed by the court. The bill also clarifies that an arranging party’s shorthand reporter may be appointed the official pro tem reporter so long as that reporter is present in the courtroom and there’s no good cause to reject the appointment.

Today’s post is on AB 2334 from the 2018 legislative session that concerns new employer reporting requirements for injuries and illness. Governor Jerry Brown signed Assembly Bill 2334 by State Assemblymember Tony Thurmond on September the 19th as Chapter 538. This new law went into effect on January 1, 2019.

The new law clarifies that the occurrence of a violation of an occupational safety and health order continues until that violation is corrected, that the Division of Occupational Safety and Health, DOSH, discovers the violation or the duty to comply with the requirement is no longer applicable. The bill AB 2334 amends several provisions of the Labor Code and adds two new provisions to the Labor Code.

Among other provisions, it requires DOSH to monitor rule‑making and implementation of the US Department of Labor’s Occupational Safety and Health Administration’s improved tracking of workplace injuries and illnesses rule regarding electronic submission of workplace injury and illness data.

It also requires DOSH, if it determines that the federal OSHA has eliminated or substantially diminished any federal submission requirements, to convene an advisory committee to evaluate how to implement changes necessary to protect the goals of that federal rule.

It, again, amends several Labor Code provisions to add new requirements, including a requirement that a citation or notice shall not be issued by the division more than six months after the occurrence of a violation.

Also, the new law added a statement of intent in 6410.1 of the Labor Code that DOSH should maintain a strong workplace injury and illness‑reporting standard and also the requirement that DOSH monitor rule‑making and implementation of the US Department of Labor with respect to the electronic submission of workplace injury and illness data.

It also says that individually identifying information may be used by the Office of Self‑Insurance Plans of the Department of Industrial Relations to carry out its duties.

The director may publish information regarding the cost of administration, workers’ compensation benefit, expenditures, solvency, and other information, as long as the information does not include any individually identifiable claim at information. All of this and more can be found in newly adopted AB 2334.

Today’s podcast is on the new rules for licensed shorthand reporters put in place by Assembly Bill 2084.

Governor Jerry Brown signed AB 2084 by Assemblymember Ash Kalra on September 21st as Chapter 648. The bill went into effect on January 1, 2019 and it adds Section 8050 to the California Business and Professions Code to limit the business practices of licensed shorthand reporters in the state.

AB 2084 prohibits an individual or entity that engages in any act that constitutes shorthand reporting, or that employs or contracts with another party to perform shorthand reporting, from engaging in specified business practices.

The bill also authorizes the attorney general, district attorney, city attorney or the CRBC to bring a civil action for a violation of these provisions of law. The new law subjects an individual or entity that violates these provisions to a civil fine not exceeding $10,000 per violation.

The bill specifies that this new code section applies to an individual or entity that engages in any licensed shorthand reporting activities.

Note however, that AB 2084 does not apply to an individual, whether acting as an individual or as an officer, director or shareholder of a shorthand reporting corporation, who possesses a valid license that may be revoked or suspended, or to a shorthand reporting corporation that is in compliance with Section 8044.

The new section of law also does not apply to a court, a party to litigation, an attorney of a party, or a full‑time employee of the party or the attorney of the party who provides or contracts for certified shorthand reporting for purposes related to this litigation.

Specifically the new code section prohibits an individual or entity from doing any of the following four items:

Seek compensation for a transcript that is in violation of the minimum transcript format standards set forth in applicable regulations.

Seek compensation for a certified court transcript applying to these other than those set out in statute.

Make a transcript available to one party in advance of other parties, or provide a service to only one party.

Fail to promptly notify a party of a request for preparation of all or any part of a transcript, excerpts or expedite for one party without the other party’s knowledge.

AB 2084 does not, however, prohibit a licensed shorthand reporter, shorthand reporting corporation, an individual entity from offering or providing long‑term or multi‑case volume discounts or services that are ancillary to reporting and transcribing a deposition, arbitration or judicial proceeding in contracts that are subject to law related to shorthand reporting.

The bill requires an employer to make reasonable efforts to provide an employee wishing to express milk in private with an area in close proximity to her workspace that is not a bathroom.

The bill went into effect on January 1, 2019 and amends Labor Code Section 1031. Now, essentially, the bill provides agricultural employers to be in compliance with these requirements if they provide the employee with a private, enclosed, and shaded space. Also, the requirement was removed that the temporary lactation accommodation space be air conditioned.

The bill also allows employers who show that providing an employee with a lactation space that is not a bathroom would constitute undue hardship to that business to provide a lactation space that is not a bathroom stall. AB 1976 requires an employer to make reasonable efforts to provide that employee with use of a room or other location other than a bathroom.

In Labor Code Section 1031A, the bill strikes “toilet stall” and replaces it with the word “bathroom.” Also, subdivision B deems an employer to be in compliance with this provision of law if all four conditions that I will specify are met.

One, the employer is unable to provide a permanent lactation location because of operational, financial, or space limitations.

Two, the temporary lactation location is private and free from intrusion while an employee expresses milk.

Three, the temporary lactation location is used only for lactation purposes while an employee expresses milk.

Four, the temporary lactation location otherwise meets the requirements of state law.

Lastly, a note to employers. Existing law makes a violation of these provisions subject to a civil penalty and makes the Labor Commissioner responsible for enforcement. These provisions of existing law continue even after AB 1976’s additional lactation accommodation requirements.

Governor Jerry Brown signed Assembly Bill 2282 by Assemblywoman Susan Eggman on July 18, 2018 as Chapter 127. The bill provides clarity on several provisions of existing California law that’s intended to prohibit the use of prior salary history in negotiations between employers and applicants for employment. The bill amended Labor Code Sections 432.3 and 1197.5 and went into effect on January 1, 2019.

AB 2282 defined the terms “pay scale,” “reasonable request,” and “applicant” for purposes of the existing law. AB 2282 further clarified that existing law does not prohibit an employer from asking an applicant for employment salary expectations for the position that he or she is applying for.

In addition, the new law allows an employer to make a compensation decision based upon an employee’s current salary, so long as any wage differential from the particular compensation is noted.

The bill specifies that the prohibition on asking a job applicant about prior salary does not actually forbid the employer from asking the applicant for employment about his or her salary expectations.

In terms of specific provisions, the bill also said that a “pay scale” means a salary or hourly wage range, and that a “reasonable request” means a request that’s made after the applicant has completed an initial interview with the employer. Then AB 2282 defines an “applicant” to mean an individual who is seeking employment and is not currently employed with that particular employer.

Note, too, that AB 2282 also made two important changes to California’s Equal Pay Act in both the equal pay provisions. One is based upon gender and the other on race or ethnicity.

The new law struck the requirement that salary history shall not, by itself, justify any disparity in compensation. “Prior salary shall not justify any disparity in compensation.”

This bill didn’t have any opposition and moved relatively easily through the legislative process. It was co‑sponsored by the American Association of University Women, California Employment Lawyers Association, and equal rights advocates.

Today’s post is on AB 1654 by Assemblywoman Rubio from the 2018 legislative session. AB 1654 creates a new exemption from the Labor Code Private Attorneys General Act of 2004, otherwise known as PAGA.

The exemption is strictly for the construction industry, and it exempts from PAGA an employee in the construction industry – which is defined with respect to work performed under a valid collective bargaining agreement in effect any time before January 1, 2025.

That collective bargaining agreement, CBA, must contain certain provisions, including among other things a grievance and binding arbitration procedure to address violations that authorize the arbitrator to award otherwise available remedies.

PAGA, in effect, encourages class‑action type lawsuits over minor employment issues because once a PAGA lawsuit has been filed, the employee or class plaintiff is suing on behalf of the state.

The issues involved are no longer subject to arbitration. The threat of extended litigation, including wide‑ranging discovery allowed when prosecuting civil claims in court, on behalf of an entire class of workers, provides enormous pressure on employers to settle claims regardless of the validity of those claims.

Assemblywoman Rubio, the bill’s author, stated, “This bill would commit PAGA claims arising in the building and construction industry to the grievance and arbitration machinery of a collective bargaining agreement maintained by the employers and a union in that industry so long as that CBA expressly provides for certain key provisions, including grievance and binding arbitration procedures.”

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CAP⋅impact provides the information, advice and analysis you need to understand and shape the rules around you. CAP·impact is a project of the nonpartisan Capital Center for Law & Policy at McGeorge School of Law.

About this Blog

CAP⋅impact provides the information, advice, and analysis you need to understand and shape the rules around you. We provide all content for educational purposes only, and subject to our disclaimers. CAP·impact is a project of the nonpartisan Capital Center for Law & Policy at McGeorge School of Law.